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Nos. 1, 2 and 3, Original

IN THE SUPREME COURT OF THE UNITED STATES

STATE OF WISCONSIN, ET AL., PLAINTIFFS

v.

STATE OF ILLINOIS AND METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, ET AL.

STATE OF MICHIGAN, PLAINTIFF

v.

STATE OF ILLINOIS AND METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, ET AL.

STATE OF NEW YORK, PLAINTIFF

v.

STATE OF ILLINOIS AND METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, ET AL.

ON RENEWED MOTION FOR PRELIMINARY INJUNCTION

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN Solicitor General

Counsel of Record Department of JusticeWashington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov(202) 514-2217

TABLE OF CONTENTS

Page

Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

TABLE OF AUTHORITIES

Cases:

Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531(1987) . . . . . . . . . . . . . . . . . . . . . . . . . 11

Arkansas v. Oklahoma, 488 U.S. 1000 (1989) . . . . . . . . . 16 Arkansas v. Oklahoma, 546 U.S. 1166 (2006) . . . . . . . . . 16 California v. Texas, 457 U.S. 164 (1982) . . . . . . . . . . 17 Colorado v. New Mexico, 459 U.S. 176 (1982) . . . . . . . . . 15 Davis v. PBGC, 571 F.3d 1288 (D.C. Cir. 2009) . . . . . . . . 11 Illinois v. City of Milwaukee, 406 U.S. 91 (1972) . . . . . . 17 Louisiana v. Mississippi, 488 U.S. 990 (1988) . . . . . . . . 16 Mississippi v. City of Memphis, No. 139, Original

(Jan. 25, 2010) . . . . . . . . . . . . . . . . . . . . 15 Mississippi v. Louisiana, 506 U.S. 73 (1992) . . . . . . . . 16 Missouri v. Illinois, 180 U.S. 208 (1901) . . . . . . . . . . 16 Munaf v. Geren, 128 S. Ct. 2207 (2008) . . . . . . . . . 11, 20Nebraska v. Wyoming, 515 U.S. 1 (1995) . . . . . . . . . . . 20 Pennsylvania v. Alabama, 472 U.S. 1015 (1985) . . . . . . . . 16 Pennsylvania v. Oklahoma, 465 U.S. 1097 (1984) . . . . . . . 16 Qingdao Taifa Group Co. v. United States, 581 F.3d

1375 (Fed. Cir. 2009) . . . . . . . . . . . . . . . . . 12 Reed v. Town of Gilbert, 587 F.3d 966 (9th Cir. 2009) . . . . 12 South Carolina v. North Carolina, No. 138, Original

(Jan. 20, 2010) . . . . . . . . . . . . . . . . . . 17, 20The Real Truth About Obama, Inc. v. FEC, 575 F.3d 342

(4th Cir. 2009), petition for cert. pending,No. 09-724 (filed Dec. 16, 2009) . . . . . . . . . . . . 11

Winter v. NRDC, 129 S. Ct. 365 (2008) . . . . . . . . . . 11, 21Wisconsin v. Illinois, 289 U.S. 395 (1933) . . . . . . . . . 17 Wisconsin v. Illinois, 388 U.S. 426 (1967) . . . . . . . . . 14

(I)

II

Statute: Page

Energy and Water Development and Related AgenciesAppropriations Act, 2010, Pub. L. No. 111-85,§ 126, 123 Stat. 2853 (2009) . . . . . . . . . . . 2, 6, 15

Miscellaneous:

Asian Carp Regional Coordinating Comm., Draft Asian Carp ControlStrategy Framework (Feb. 2010),http://www.asiancarp.org/RegionalCoordination/documents/AsianCarpControlStrategyFramework.pdf . . . . . . . . . . . . . . . . . . 3, 5, 6, 7, 23, 26

Environmental DNA Results as of February 11, 2010 (visited Feb. 25, 2010), http://www.lrc.usace.army.mil/pao/11Feb2010_eDNA_update.pdf . . . . . . . . . 8

U.S. Army Corps of Eng’rs, Chicago Dist. (visitedFeb. 25, 2010), http://www.lrc.usace.army.mil . . . . . 7

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IN THE SUPREME COURT OF THE UNITED STATES

Nos. 1, 2 and 3, Original

STATE OF WISCONSIN, ET AL., PLAINTIFFS

v.

STATE OF ILLINOIS AND METROPOLITAN SANITARY DISTRICT OF GREATERCHICAGO, ET AL.

STATE OF MICHIGAN, PLAINTIFF

v.

STATE OF ILLINOIS AND METROPOLITAN SANITARY DISTRICT OF GREATERCHICAGO, ET AL.

STATE OF NEW YORK, PLAINTIFF

v.

STATE OF ILLINOIS AND METROPOLITAN SANITARY DISTRICT OF GREATERCHICAGO, ET AL.

ON RENEWED MOTION FOR PRELIMINARY INJUNCTION

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

The Solicitor General, on behalf of the United States of

America, respectfully submits this memorandum in opposition to the

renewed motion for preliminary injunction submitted by the State of

Michigan.

(1)

2

STATEMENT

Our memorandum in response to Michigan’s first motion for a

preliminary injunction explains the operation of the Chicago Area

Waterway System (CAWS) and details the extensive efforts by the

federal and state governments to prevent the silver and bighead

carp (Asian carp) from entering Lake Michigan through the CAWS.

Those efforts include Congress’s authorization for the U.S. Army

Corps of Engineers to take emergency action to prevent Asian carp

from entering the Great Lakes, see Energy and Water Development and

Related Agencies Appropriations Act, 2010, Pub. L. No. 111-85,

§ 126, 123 Stat. 2853 (2009) (Section 126); the continued operation

of the current electric Barriers I and IIA to prevent passage of

Asian carp through the CAWS, and the expedited construction of

Barrier IIB, to be completed later this year, to furnish additional

protection; new restrictions on ballast and bilge water discharge

by vessels crossing the electric barriers, to prevent any potential

transfer of Asian carp or carp eggs; construction (recently

approved) of new physical barriers to prevent Asian carp from being

swept into the Chicago Sanitary & Ship Canal in a flood; and the

use of environmental DNA (eDNA) technology, including as a means of

focusing further intensive netting and electrofishing operations

undertaken by federal and state agencies. Michigan filed no reply

to the United States’ prior memorandum, and this Court denied the

requested preliminary injunction on January 19, 2010.

3

1. Since the United States’ prior memorandum was filed,

numerous federal, state, and local agencies participating in the

Asian Carp Regional Coordinating Committee have drafted a compre-

hensive strategy to combat Asian carp in both the near and long

terms. Draft Asian Carp Control Strategy Framework (Feb. 2010),

http://www.asiancarp.org/RegionalCoordination/documents/AsianCarp

ControlStrategyFramework.pdf (Framework); App. 2a.1 The Great

Lakes States have been invited, through their governors and

attorneys general, to comment on and participate in refining the

Framework. Michigan has provided comments on the Framework.

a. In accordance with the Framework, the U.S. Fish and

Wildlife Service and the Illinois Department of Natural Resources

have engaged in sustained electrofishing and netting operations at

several locations in the CAWS above the electric barrier system.

The agencies selected locations at which positive eDNA samples had

been found and which were likely to attract fish during the winter

months (e.g., points at which warm water is discharged into the

CAWS). Four days of sustained operations in early February, and

four more days of sustained operations last week, yielded numerous

common carp but no Asian carp. Thus, to date, no live or dead

1 References to “App.” refer to the appendix to thismemorandum. References to “U.S. January App.” refer to theappendix to the United States’ memorandum in opposition toMichigan’s previous motion for a preliminary injunction.References to “Ill. App.” refer to the appendix to Illinois’sresponse to the renewed motion for a preliminary injunction.

4

Asian carp have been identified or observed in the CAWS above the

electric barrier system. App. 69a-71a.

As a way of evaluating the efficacy of these targeted

detection methods, the Illinois Department of Natural Resources

undertook a similar electrofishing operation near Starved Rock Dam,

well below the electric fish barriers, to verify that electro­

fishing can capture Asian carp under winter conditions. Those

efforts captured between 30 and 40 Asian carp. App. 70a-71a; Ill.

App. 14a.

b. One important aspect of the Framework is its examination

of a short-term strategy that the Corps identifies as “modified

structural operations.” Under several of the alternatives being

considered as part of that strategy, the locks would be closed to

traffic for recurring periods. In examining modified structural

operations, the Corps, in consultation with other agencies, is

considering whether the goals of preventing Asian carp migration

toward or into Lake Michigan and permitting continued navigation,

at certain times, can co-exist through modified operation of

existing structures in the CAWS (such as locks and dams, sluice

gates and pumping stations) in ways that would impede migration of

any Asian carp that might reach those points. With respect to the

locks, any recurring periods of closure would be synchronized with

other efforts by federal and state agencies, such as targeted

poisoning or intensive electrofishing and netting, to determine

whether Asian carp are present, to capture or kill any carp that

may exist, and to prevent Asian carp from passing at times when the

5

lock is open to navigation. Framework at ES-2 to ES-3; id. at 15­

16; App. 2a, 8a-9a. The Corps has already sought comments on that

proposal, App. 10a, and intends to make an initial recommendation

to the Assistant Secretary of the Army for Civil Works in the near

future, in time to permit action to be taken this spring, ibid.

The Corps is also examining how the locks, sluice gates, and

other facilities can be modified to repel Asian carp or reduce or

eliminate pathways through which they might travel, such as by

installing new technology (such as acoustic barriers) or by

modifying the existing facilities (such as by installing screens on

sluice gates). App. 9a, 50a. The evaluation of acoustic, bubble,

or strobe-light barriers to deter passage of Asian carp has been

expedited, and a special “Red Team” has been formed to assist the

Corps’ Chicago District with a potential recommendation. The Corps

expects that the Assistant Secretary will receive a recommendation

regarding the use of these new technologies in March. App. 10a.

Although the short-term measures currently being considered

under the heading of modified structural operations do not involve

an indefinite closure of the locks, the Corps intends to study

permanent separation of the Great Lakes and Mississippi River

watersheds as a long-term solution. That study involves consider­

ably more issues and a correspondingly longer timeframe. See App.

4a-6a; Framework 23-24.

c. Another step, which Michigan requested in its previous

motion, is already underway. On January 12, 2010, shortly after

our previous filing, the Assistant Secretary invoked her authority

6

under Section 126 to authorize the construction of structural

protections to prevent flooding from carrying Asian carp into the

Chicago Sanitary & Ship Canal from the Des Plaines River or the

Illinois & Michigan Canal. Framework 17; App. 2a, 5a.

d. The Framework includes more than 30 short- and long-term

steps that federal agencies are undertaking to combat the spread of

Asian carp. They include intensive efforts to monitor, confine,

capture, and kill Asian carp in the waterway, using electrofishing,

netting, eDNA sampling, side-scan sonar, and trained observation

divers; scientific efforts to develop carp-specific poisons and

“bio-bullets,” attractant and repellent pheromones, and sonic or

electrical means to disrupt carp reproduction; and further

validation of the Coast Guard’s already-in-place restrictions to

prevent any possibility that Asian carp or carp eggs might be

carried through vessels’ ballast or bilge water. Framework 13-15,

17-20, 27. The Corps will also continue to operate the existing

electric dispersal barriers, to complete Barrier IIB, and to verify

the efficacy of their settings. Id. at 22, 27-28. And in addition

to the focus on the CAWS above the fish barriers, several agencies

will take other steps to reduce the threat to the Great Lakes, such

as combating the risk of Asian carp minnows’ entering the Lakes

when used as bait; using commercial fishing to reduce the Asian

carp population below the fish barriers; enforcing prohibitions on

transporting injurious wildlife; and educating the public about the

dangers Asian carp pose. Id. at 28-30.

7

2. Dr. David Lodge’s laboratory at the University of Notre

Dame continues to process eDNA samples from the CAWS. As explained

in the government’s letter of January 19, Mich. Renewed App. 1a,

samples collected in December from two locations lakeward of the

O’Brien Lock -- one in the Calumet River and one in Calumet Harbor

-- tested positive for silver carp eDNA. Id. at 2a. Updates on

the eDNA results are regularly made public on the website of the

Corps’ Chicago District, http://www.lrc.usace.army.mil. Since our

last filing, samples from two other locations have tested positive:

one location in the Chicago Sanitary & Ship Canal (silver carp) and

one in the Grand Calumet River near the confluence with the Cal-Sag

Channel (bighead and silver carp). See App. 25a (approximate

locations yielding one or more positive samples); Environmental DNA

Results as of February 11, 2010 (visited Feb. 25, 2010),

http://www.lrc.usace.army.mil/pao/11Feb2010_eDNA_update.pdf (map

reflecting number of sampling dates for each location); see also

U.S. Prelim. Inj. Opp. 12-13, 15-16 (discussing locations of

previous positive samples). Those results continue to be the basis

for targeted netting and electrofishing operations like those

described above. App. 69a.

Simultaneously, the Environmental Laboratory at the Corps’

Engineer Research and Development Center (ERDC) is working with Dr.

Lodge’s laboratory to triple the processing rate of eDNA samples

and to review the eDNA science to better understand how accurately

the eDNA results correlate with the presence (or absence) of the

target species. See App. 13a, 33a-35a. The Corps will also be

8

subjecting the eDNA technology to independent, external peer

review. App. 13a-14a, 32a-33a.

ARGUMENT

Michigan has not shown that this case belongs in this Court;

has not identified any statute or any recognized principle of

federal common law that might ultimately entitle it to relief in

any court; and has not demonstrated that it is entitled to a

mandatory preliminary injunction even before this Court decides

whether to take up the case at all. Michigan’s first preliminary­

injunction motion suffered from all of these deficiencies, and

Michigan has cured none of them. Its renewed filing offers no new

reason why this case belongs under the heading of long-closed

water-diversion litigation in this Court; no cognizable dispute

with the State of Illinois; no valid reason why it could not seek

effective relief against the other parties from a federal district

court; and nothing about the ultimate merits of the legal theory

that purportedly entitles it to relief. Nor has any new evidence

confirmed the presence of live Asian carp in the Chicago Area

Waterway System above the fish barriers. Rather, Michigan’s only

new submissions present additional results from the ongoing eDNA

testing and a belated attempt to dispute economic analysis in the

defendants’ previous briefs. But the weight to be given eDNA

evidence and the economic impact of the proposed injunction were

central to Michigan’s previous brief, and this Court denied the

extraordinary relief Michigan sought. The renewed motion should

likewise be denied.

9

1. Likelihood of Success. Like its previous preliminary­

injunction motion, Michigan’s renewed motion fails first and

foremost because Michigan has not shown that this Court is likely

to take up this case or that, if it does, Michigan is likely to

establish by the requisite clear and convincing evidence that it is

entitled to the mandatory injunctive relief it seeks on the merits.

In its renewed motion Michigan offers nothing new to bolster its

chances of prevailing. On this ground alone, Michigan cannot show

entitlement to the extraordinary preliminary injunction it once

again seeks.

a. Michigan repeatedly attempts to minimize the importance

of showing a likelihood of success. It discusses that factor last,

and then only cursorily (Renewed Mot. 35-37; see also Mot. for

Prelim. Inj. 21-23, 25-26). And tacitly acknowledging the

inadequacy of its submission on this point, it twice suggests that

it should be excused from having to make the ordinary showing. See

Renewed Mot. 37 (“even a modest showing on the likelihood of

success factor should be sufficient”); id. at 12 (seeking support

from cases purportedly authorizing injunctive relief “where the

case supporting the likelihood of success on the merits factor is

not as strong”).

That is not the law. “[A] party seeking a preliminary

injunction must demonstrate, among other things, a likelihood of

success on the merits.” Munaf v. Geren, 128 S. Ct. 2207, 2219

(2008) (emphases added; citation omitted); accord, e.g., Winter v.

NRDC, 129 S. Ct. 365, 374 (2008); Amoco Prod. Co. v. Village of

10

Gambell, 480 U.S. 531, 546 n.12 (1987). That showing is not

optional, and it is not an afterthought: a party who seeks a court

order before winning its case must show that it is, at least,

likely to win.

Furthermore, if Michigan cannot show that it is likely to

prevail, the strength of its showing on other prongs of the test is

not relevant. Cf. Winter, 129 S. Ct. at 375-376 (even a strong

showing of likely success cannot compensate for failure to show

likely injury). Since Munaf and Winter, the courts of appeals have

begun to recognize as much. See, e.g., The Real Truth About Obama,

Inc. v. FEC, 575 F.3d 342, 346-347 (4th Cir. 2009) (overruling

circuit precedent permitting a more relaxed showing of injury in

light of Winter), petition for cert. pending, No. 09-724 (filed

Dec. 16, 2009); Davis v. PBGC, 571 F.3d 1288, 1296 (D.C. Cir. 2009)

(Kavanaugh, J., joined by Henderson, J., concurring) (explaining

that “[i]n light of the Supreme Court’s recent decisions,”

including Winter and Munaf, “a strong showing of irreparable harm

* * * cannot make up for a failure to demonstrate a likelihood

of success on the merits”); accord Reed v. Town of Gilbert, 587

F.3d 966, 973-974, 981 (9th Cir. 2009) (affirming denial of

preliminary injunction based purely on failure to show likely

success on the merits). Even petitioner’s sole authority postdat­

ing Winter (Renewed Mot. 12 n.9; see also Mot. for Prelim. Inj. 7

n.13) requires “at least a fair chance of success on the merits.”

Qingdao Taifa Group Co. v. United States, 581 F.3d 1375, 1381 (Fed.

Cir. 2009) (citation omitted); see also ibid. (noting that the

11

United States did not oppose the preliminary injunction in that

case).

Finally, as the United States has previously explained and as

Michigan does not dispute, the burden is higher in an action

between sovereigns. To obtain an injunction in an original action

in this Court directing the conduct of the State of Illinois or the

United States, Michigan must establish the merits of its entitle­

ment by clear and convincing evidence. U.S. Prelim. Inj. Opp. 22.

Thus, to obtain the extraordinary remedy of a mandatory preliminary

injunction before this Court has even granted leave to commence the

action, Michigan must show both that this Court is likely to take

up the case and that, if it does, Michigan is likely to establish

a clear and convincing entitlement to relief. As we have already

shown and further explain below, Michigan can make neither showing.

b. The United States explained in its previous filing why

this dispute is not properly the subject of a motion to reopen the

prior decree. Michigan offers no new justification in its current

filing. The litigation that Michigan seeks to reopen pertained to

how much total water the State of Illinois may remove from the Lake

Michigan watershed (which mostly includes pumpage and runoff).

U.S. Prelim. Inj. Opp. 19-20; Ill. Prelim. Inj. Opp. 17-21. The

decree in that earlier water-diversion litigation does not

encompass this dispute, which is altogether unrelated to the total

quantity of water Illinois may divert from Lake Michigan. U.S.

Prelim. Inj. Opp. 25-29. Indeed, the only relevant new matter in

Michigan’s latest filing makes this new dispute even more remote

12

from the water-diversion litigation: not only has Michigan

disclaimed all along any request to enjoin diversions of water from

the Lake, id. at 26-27, Michigan has now abandoned even its

tangential request that the Court restrict the water levels in the

CAWS. See Renewed Mot. 7. This dispute simply is not “proper in

relation to the subject matter in controversy” in the water­

diversion litigation, as the reopener clause in the prior decree

requires. Wisconsin v. Illinois, 388 U.S. 426, 430 (1967)

(emphasis added).2

Nor is this case properly the subject of a new original action

in this Court, because Michigan could obtain complete relief in a

trial court, with no need to invoke this Court’s exclusive

jurisdiction over a suit between States. Illinois simply is not a

2 Less than a week prior to this filing by the United Statesin response to Michigan’s renewed request for a preliminaryinjunction, several party States and various amici filed briefs insupport of Michigan’s motion, or of the underlying motions toreopen the Court’s prior decree or for leave to file a new bill ofcomplaint. Those briefs advance various jurisdictional arguments,including several not made by Michigan. Amicus Shoreline Caucus devotes four paragraphs to the reopening issue, reading the word“proper” out of the decree and arguing that any dispute between theGreat Lakes States that “has ‘some relation’ or ‘connection’ to the original actions” may be brought to this Court in a reopeningmotion. Shoreline Caucus Br. 19. As we have previously explained,the reopener clause in the Court’s Decree does not commit thisCourt to serving as a court of first instance for the Great Lakes.U.S. Prelim. Inj. Opp. 27-29. Amici AGL et al. incorrectly assert(at 21 n.9) that the 1967 decree is implicated by any restrictionon diversions by the Water District; in fact, the decree capsdiversions by Illinois as a whole and does not specify diversionsby the Water District.

We expect to address the amici’s jurisdictional arguments morefully in our brief in opposition to Michigan’s motion to reopen,which is due March 22, 2010.

13

necessary party to any ripe dispute. As we have pointed out,

Michigan’s prayer for relief focuses on actions within the control

of federal agencies (chiefly the Corps) and in some instances the

Water District. Only the Corps and the Water District operate

locks, sluice gates, or the pumping station. U.S. Prelim. Inj.

Opp. 32-33. The only basis Michigan advances for naming Illinois

as a defendant is its assertion that only Illinois can take “active

measures to capture, kill, or impede the movement of Asian carp” in

waterways within Illinois, and that the State has not “announced

* * * any [such] active measures.” Renewed Mot. 21, 36-37. But

Michigan has not even shown a ripe controversy on that score; as

Illinois has explained, it is undertaking active measures, and

Michigan does not specify what Illinois should be doing differ­

ently. See Ill. Renewed Prelim. Inj. Opp. 4-6, 16-17. This Court

routinely denies leave to file bills of complaint when the

complained-of conduct is not presenting or threatening any real or

substantial injury. See, e.g., Mississippi v. City of Memphis, No.

139, Original (Jan. 25, 2010) (citing Colorado v. New Mexico, 459

U.S. 176, 187 n.13 (1982)). And in any event, Michigan and its

amici (see note 2, supra) are wrong in their assertion (Renewed

Mot. 37; AGL Br. 16-17 & n.6) that state law asserting title to

fish makes Illinois the only possible actor: state law does not

bind the federal government, and the Corps has broad, clear

authority under Section 126 to take any necessary action to combat

the carp. See U.S. January App. 3a; Ill. Renewed Prelim. Inj. Opp.

15-20.

14

Michigan’s amici instead make a new argument: that, simply by

naming Illinois, Michigan has become entitled to sue in this Court.

E.g., Shoreline Caucus Br. 15-17; Indiana Br. 9. But this Court

has denied a State’s motion for leave to file an action against

another State on a number of occasions. See, e.g., Arkansas v.

Oklahoma, 546 U.S. 1166 (2006) (No. 133, Original); Arkansas v.

Oklahoma, 488 U.S. 1000 (1989) (No. 115, Original); Louisiana v.

Mississippi, 488 U.S. 990 (1988) (No. 114, Original); Pennsylvania

v. Alabama, 472 U.S. 1015 (1985) (No. 101, Original); Pennsylvania

v. Oklahoma, 465 U.S. 1097 (1984) (No. 98, Original). Michigan may

sue in this Court only if no alternative forum exists, Mississippi

v. Louisiana, 506 U.S. 73, 77 (1992), and then only if the other

discretionary criteria for invoking this Court’s original jurisdic­

tion are satisfied.

The amici rely on the theory that Illinois is responsible for

whatever the Water District does; that Michigan may therefore sue

Illinois; and that naming Illinois defeats the jurisdiction of the

alternative forum. Shoreline Caucus Br. 8-11, 15-16; AGL Br. 15­

16. That argument misses the point. The question here, unlike in

the cases on which amici rely, is not whether Illinois is responsi­

ble in a legal sense for the Water District’s actions and, if not,

is entitled to dismissal on the merits. See Missouri v. Illinois,

180 U.S. 208, 242 (1901) (overruling demurrer); accord Wisconsin v.

Illinois, 289 U.S. 395, 399-400 (1933) (Illinois made “no objection

* * * to [being joined] as a party defendant” but disputed its

“legal liability * * * for the acts of the Sanitary District”).

15

Rather, the question is whether Michigan can obtain the identical

relief against the Water District in another forum. If it can,

this Court will require it to go there. See U.S. Prelim. Inj. Opp.

31 & n.7 (citing cases).3 In the earlier phase of the water­

diversion litigation, there was no alternative forum, because the

dispute -- whether Illinois was diverting an inequitably large

quantity of water from Lake Michigan -- was quintessentially one

between the States, not their instrumentalities. See, e.g., South

Carolina v. North Carolina, No. 138, Original (Jan. 20, 2010), slip

op. 17-18; id. at 4 (Roberts, C.J., concurring in the judgment in

part and dissenting in part) (“An interest in water is an interest

* * * properly pressed or defended by the State.”). Here the

federal district courts are open to hear a suit against the Corps

and the Water District, as no one disputes.

As one amicus expressly states (Shoreline Caucus Br. 8), its

argument would permit Michigan to sue Illinois in this Court and

seek an order directing Illinois to direct the Water District to

provide exactly the same relief that a district court could impose

against the Water District directly. This Court has no obligation

to entertain suits in the first instance when the State is named

purely as an intermediary and the entity against whom relief is

3 The notion that this Court will deny leave to file only ifthere is already pending litigation in the alternative forum,Shoreline Caucus Br. 17; States’ Br. 6-7, is wrong. See, e.g.,California v. Texas, 457 U.S. 164, 168-169 (1982) (per curiam).Such a first-to-file rule would negate this Court’s authority tomanage not only its exclusive, but also its concurrent, originaljurisdiction. See Illinois v. City of Milwaukee, 406 U.S. 91, 93-94, 108 (1972).

16

truly sought can be sued in an alternative forum that is better

suited to trial-level litigation. Michigan cannot negate that

alternative forum simply by naming Illinois as a defendant, when

Michigan would not be able to obtain any greater or better relief

with Illinois in the case than without it.

c. Even if Michigan could show at this stage that this Court

will take up the case, Michigan cannot establish that it is likely

to prevail on the ultimate merits of its claims -- i.e., that it

will be able to make the clear and convincing showing necessary to

obtain a permanent injunction ordering that the Illinois Waterway

be “permanently and physically separate[d]” from Lake Michigan,

Pet. for Supplemental Decree 29-30. As we explained in response to

Michigan’s first motion for a preliminary injunction, Michigan has

not identified any source of law that compels the Corps (or any

other federal agency) to take the steps Michigan demands or that

permits a federal court to impose those steps on the United States,

whose operation of the facilities for which it is responsible is

governed by statutes authorizing the works and regulating their

uses. U.S. Prelim. Inj. Opp. 36-43. Michigan makes no effort in

its renewed motion to refute those points, and indeed does not

address the issue at all.

Nor do Michigan’s amici offer it any help. Amicus Shoreline

Caucus devotes two paragraphs (at 20-21) to Illinois’s purported

public-trust obligations under state law, a theory on which

Michigan does not rely. But amicus does not assert (nor could it)

that state public-trust law regulates federal actions. Nor does it

17

explain why the active measures to combat the migration of Asian

carp that are already in place or underway do not satisfy any such

obligations. See Ill. Renewed Prelim. Inj. Opp. 2 n.2. Amici AGL

et al. do not address the preliminary injunction; they simply

assert (at 23) that this Court has jurisdiction and that Michigan’s

common law and APA claims “may be contested and determined upon a

full hearing on the merits.”4 But as this Court unanimously held

in Munaf, simply establishing jurisdiction is not enough for a

preliminary injunction; “[i]ndeed, if all a ‘likelihood of success

on the merits’ meant was that the [court of first instance] likely

had jurisdiction, then preliminary injunctions would be the rule,

not the exception.” 128 S. Ct. at 2219. Even if amici were

correct about this Court’s likely exercise of jurisdiction,

Michigan would still lack any persuasive showing as to the merits

of its claims.

4 Amici AGL et al. acknowledge (at 21) that federal common lawis displaced when it conflicts with a federal statute, and they donot address our explanation (U.S. Prelim. Inj. Opp. 39-42) of whyfederal common law does not provide a rule of decision here. Theyalso erroneously assert (at 23) -- based on a statement taken outof context from the government’s previous memorandum -- that theCorps has undertaken final agency action with respect to lockclosures. But see U.S. Prelim. Inj. Opp. 21, 38. And they do notexplain why such final agency action would be arbitrary andcapricious or contrary to law. See id. at 39-41. Finally, theyassert (at 23 n.10) that Michigan may sue now and wait for furtherAPA actions to ripen later, suggesting that this Court extendsplaintiffs in original actions the same liberal leave to amendcomplaints that the Federal Rules of Civil Procedure provide. That is not so. Nebraska v. Wyoming, 515 U.S. 1, 8 (1995) (“[T]hesolicitude for liberal amendment of pleadings animating the FederalRules of Civil Procedure does not suit cases within this Court’s original jurisdiction.”) (citations omitted); cf., e.g., SouthCarolina, slip op. 18 n.8.

18

2. Imminent Irreparable Injury. Michigan renews its

contention that it can show an imminent and irreparable injury.

But Michigan’s allegation is, in substance, the same allegation it

made two months ago -- i.e., that the results of eDNA testing by

the Corps show the presence of Asian carp above the electric

barriers, and that such evidence alone should suffice to establish

an imminent risk that a breeding population of Asian carp will

establish itself in Lake Michigan. As the Corps has explained,

however, the novelty and limitations of the eDNA technology have

led Corps officials, in consultation with the Corps’ partners on

the Asian Carp Regional Coordinating Committee, to deem the record

insufficient, without more, to establish an imminent threat that

would warrant recommending the drastic measures Michigan seeks

under the governing statutory framework. The federal government

continues to work diligently to validate the eDNA science, to track

Asian carp by all possible means, and to implement solutions as

soon as warranted by the numerous ongoing assessments. Showing

“only * * * a ‘possibility’ of irreparable harm” is insuffi­

cient; Michigan must show “that irreparable injury is likely in the

absence of an injunction.” Winter, 129 S. Ct. at 375. Once again,

Michigan has not met that burden.

a. Michigan’s central contention, as before, is that the

eDNA results compel the Corps to take the actions Michigan wants,

immediately. As we have already explained, the eDNA results to

date do not yet permit the agencies to conclude with the requisite

confidence that live Asian carp are on the lake side of the

19

electric barriers, much less that they are present in numbers that

present an imminent threat. U.S. Prelim. Inj. Opp. 45-47. That is

not because of the number of positive samples or the locations

above the barriers from which they were taken, but because of the

nature of the science, which Dr. Lodge himself describes as

“novel.” U.S. January App. 113a, 118a; see App. 12a-14a, 33a.

Those facts have not changed since Michigan filed its first motion.

Using its own scientific experts, the Corps has undertaken to

validate the eDNA science and, through peer review, to verify its

efficacy in detecting the leading edge of the Asian carp. App.

13a, 32a-35a. That validation effort is expected to conclude in

the near future. App. 13-14a. While the validation study is

underway, the Corps and other federal agencies continue to treat

Dr. Lodge’s eDNA results as useful and have used them to target

their efforts to combat the carp. See, e.g., U.S. January App.

142a-143a. Since the previous filings in this case, federal and

state agencies have undertaken two separate four-day rounds of

intensive searching for Asian carp in the CAWS above the electric

fish barriers, using standard tools such as electrofishing and

netting. These agencies used the eDNA results, as well as the

known propensity of Asian carp to favor areas with warm water

discharges in the winter months, to identify likely areas for

search. They found no Asian carp. Furthermore, to evaluate the

efficacy of those traditional tools under winter conditions, state

officials used electrofishing on the Illinois River well below the

electric fish barriers, in an area where Asian carp were known to

20

be. They were able to capture between 30 and 40 Asian carp using

that technique. App. 69a-71a. The agencies intend to continue

these monitoring efforts as temperatures rise and fish become more

physically active. See Framework 14.

Michigan’s renewed argument -- that despite these facts, the

eDNA must be taken as proving the presence of live carp -- presents

no new ground for a preliminary injunction. Indeed, it is based

principally on evidence that the United States itself submitted to

the Court in connection with the previous preliminary-injunction

motion. Renewed Mot. 14-20. To be sure, the most recently

reported results (see p. 7, supra) show the presence of Asian carp

eDNA on the lake side of the O’Brien Lock, a development that the

responsible federal and state agencies are taking seriously. But

the points we previously explained remain true: eDNA remains novel

science; even perfectly accurate eDNA results do not show the

number of individuals that might be present; these eDNA results

remain unverified by any definitive evidence showing the presence

of live Asian carp above the fish barriers; and complete, immediate

lock closure remains a drastic step.

Michigan also contends (Renewed Mot. 5, 15-16 & n.10) that the

reliability of the eDNA science for these purposes has been

established in an audit by the Environmental Protection Agency.

That contention misunderstands the scope of the EPA’s review, which

focused on Dr. Lodge’s laboratory practices and compliance with

scientific protocols, not the efficacy of the technology for

present purposes. The EPA’s audit report states that it “did not

21

address interpretation of the eDNA results in regards to the

presence or absence, proximity, or abundance of silver or bighead

carp, the presumed source of eDNA.” App. 12a-13a, 31a; see App.

30a-32a.

Moreover, as Dr. Lodge previously explained, the experts agree

that positive eDNA results do not establish the number of silver or

bighead carp that might be present or the likelihood that a

reproducing population is imminent. Indeed, as Dr. Lodge ex­

plained, individual bighead carp have been caught in Lake Erie on

a number of occasions, but there is no evidence that the species

has established a reproducing population there, or that it could.

U.S. January App. 128a-129a, 133a; see also App. 74a, 76a. Current

scientific knowledge about the carp suggests that it is highly

unlikely that the carp could successfully reproduce in the CAWS

above the fish barriers, and there are potential obstacles to their

reproduction even in Lake Michigan itself. App. 77a; see also App.

79a, 81a-83a. Thus, although Dr. Lodge concludes (and the

government agrees) that if Asian carp have entered Lake Michigan,

it is highly important to keep out additional fish to prevent a

self-sustaining population from arising, U.S. January App. 133a;

Mich. Renewed App. 2a; see App. 80a-82a, the eDNA results do not by

themselves establish an imminent risk of such a self-sustaining

population.

b. Michigan wrongly derides the intensive federal effort to

combat Asian carp migration, and to prevent Michigan’s asserted

imminent injury, as “languid[],” “slow,” “bureaucratic,” and

22

ineffective. Renewed Mot. 4, 22. The Corps has already undertaken

emergency measures pursuant to its Section 126 authority. See U.S.

January App. 3a; App. 2a, 7a-8a. The Fish and Wildlife Service,

along with its state counterpart, has been actively searching the

CAWS above the electric fish barriers for signs of Asian carp. See

pp. 3-4, supra. And as the Framework sets out in detail, the Corps

and numerous partner agencies, federal and state, are preparing to

undertake more actions. See pp. 2-5, supra.

Specifically, the Corps is assessing a potential short-term

measure -- “modified structural operations” -- that includes

various options involving regular closure of the locks for

recurring periods, as well as modifications to other structures in

the waterway system to impede Asian carp. See pp. 4-5, supra.

During these periods of closure, partner agencies would take

additional steps to capture or kill Asian carp that may be present

during the closure. App. 9a. Such periods of closure, while not

requiring a complete cessation of use of the locks, would nonethe­

less be a major step, and the Corps is expeditiously gathering the

information necessary to determine how modified structural

operations might best be conducted. App. 8a-11a. Contrary to

Michigan’s suggestion (Renewed Mot. 4) that nothing will happen

until fall, the federal agencies expect to have a recommendation to

the Assistant Secretary by early spring and, if the recommended

steps are approved, to begin action this spring. App. 10a; see

Framework at ES-3, 8-9.

23

The Corps is also evaluating, on an expedited basis, the

placement of acoustic or bubble barriers near the Chicago and

O’Brien locks and as a potential deterrent in the Little Calumet

River. A special “Red Team” has been formed to assist in hastening

this evaluation. The Corps intends to make a recommendation to the

Assistant Secretary regarding the potential use of these barriers

in March. App. 9a-10a. Although Michigan makes a passing

reference to the installation of physical barriers in its prayers

for relief (Renewed Mot. 6, 38), Michigan does not mention the

Little Calumet River anywhere else in its renewed motion, nor does

it address our previous explanation about the potential impact of

a new physical barrier in that river on flood control and water

quality. See U.S. January App. 31a-32a, 77a, 102a-103a.

3. Balance of Equities and Public Interest. In our previous

submission, we explained that a complete closure of the locks would

have consequences for flood control, public safety, and the

economy: the locks are used to relieve flooding, to provide Coast

Guard vessels with speedy passage between the lakefront and the

CAWS, and to transport more than $1.7 billion in cargo annually.

U.S. Prelim. Inj. Opp. 47-52; see also Ill. Prelim. Inj. Opp. 46-47

(fire and police departments’ reliance on the locks); Ill. Renewed

Prelim. Inj. Opp. 9-11 (same). In its renewed motion, Michigan

effectively concedes (at 25, 27) that an indefinite closure would

indeed have those consequences.

Instead, Michigan now responds that it does not mean for its

proposed injunction to affect flood control or public safety and

24

that an injunction “can be fashioned” to address those concerns.

That sentiment is commendable, but as we explain below, a vague

amendment to the prayer for relief is not sufficient to guarantee

that a preliminary injunction would not have those effects. All

Michigan has done is to ask the Court to undertake for itself the

question of deciding when, whether, and how the locks should be

permitted to open in emergencies -- an extraordinary request in a

case this Court has not even agreed to hear. See Ill. Renewed

Prelim. Inj. Opp. 7-8. Moreover, Michigan does not deny that its

requested relief would completely halt shipping between the

Illinois Waterway and the Great Lakes -- and potentially even

affect shipping within the waterway. Rather, it quibbles over

quantifying the economic impact of such a decision, and it does so

using models that disregard many of the costs the requested

injunction would impose. As even Michigan’s amicus Indiana agrees,

those economic impacts are real, significant, and cannot be assumed

away.

a. As we have explained, U.S. Prelim. Inj. Opp. 49, the

Chicago and O’Brien Locks were not designed as fish barriers; they

are not watertight, and small fish or fish eggs conceivably could

penetrate even a permanently closed lock. Permanently closing the

locks in a way that would actually prevent fish passage would

require at least the installation of bulkheads (and potentially

dewatering the locks as well). Those bulkheads would have to be

emplaced or removed using cranes. Accordingly, a bulkheaded lock

25

would effectively be unusable for rapid response by the Coast Guard

or by local police or fire boats. See App. 57a.

Indeed, for bulkheaded locks to be available for flood control

purposes, a crane must constantly be available -- at a cost of

$12,000 per day -- to remove the bulkheads under flood conditions

that require the use of the lock. App. 54a. The Corps and the

Water District take seriously the need to ensure that the locks are

available to protect public safety. That is why, throughout a

scheduled refurbishment of the Chicago Lock next year, the Corps

intends to have the crane standing by on a floating barge to remove

the bulkheads at any time the lock needs to be opened for flood

control -- even though the refurbishment will take place during the

winter, when flooding risks are lower, and will not affect the

sluice gates, the primary flood-control tool. App. 53a-54a.5

Michigan also offers no response to the point that its

proposed new structure on the Little Calumet River (which the

5 The long-planned improvement of the Chicago Lock will closethe lock between November 2010 and April 2011, as the Corpsannounced on January 20, 2010. App. 53a. Unlike Michigan’sproposed injunction, the Chicago lock refurbishment will not affectthe Chicago Controlling Works’ sluice gates (which are the primarytool for flood-control and water-quality purposes), and will notaffect the O’Brien Lock, which handles a steady stream ofcommercial traffic year-round. Ibid. Furthermore, the Chicagoclosure will take place during the winter season, when the ChicagoLock’s traffic (which is mostly recreational and passenger boattraffic) is at a minimum and, as noted in the text, the risk of flooding is lower. App. 53a-54a. Moreover, the Chicago lockclosure is being announced to navigation interests ten months inadvance, see App. 53a, so that -- to the extent possible -- theycan plan around the closure. And the temporary unavailability ofthe lock is necessary to make sure it is available in the futurefor public safety and other purposes. App. 11a-12a, 59a.

26

renewed motion mentions only in passing) would have serious flood­

control consequences for the State of Indiana, which has filed its

own brief expressing that concern. U.S. Prelim. Inj. Opp. 48-49;

Indiana Br. 4-5.

b. Furthermore, even a temporary lock closure risks becoming

permanent and irreversible if the locks are not either de-watered

-- making them unusable for passage by rapid responders -- or

allowed to operate to keep the machinery in regular motion. During

the winter months, if the lock gates remained in the water without

being operated, they would risk being permanently damaged by ice.

U.S. January App. 93a-94a. We explained as much in our earlier

submission, U.S. Prelim. Inj. Opp, 49, yet Michigan conspicuously

does not say in its renewed motion whether its request for relief

would permit the locks to cycle in order to keep them operational

and usable for public safety. Instead, Michigan suggests (Renewed

Mot. 27 n.15) that the Corps should develop some unspecified

technological solution that prevents freezing but does not require

moving the lock gates. Years of research on that question by the

Corps’ cold-weather research laboratory has not produced a fully

effective device, App. 49a-50a, and Michigan’s notion that one

could be implemented instantaneously is fanciful.

c. Michigan seeks to explain away the consequences of a

permanent lock closure for public safety by asserting that the

Coast Guard (and local public-safety agencies) should operate

facilities and maintain boats on both sides of the to-be-closed

locks. The Coast Guard does not view that solution as a viable

27

one: dividing its Chicago-area assets, such that boats stationed

on the river side are not quickly available to the lake side and

vice versa, could leave both sides vulnerable to shortages.

Michigan’s proposed solution would require the Coast Guard to open

a new station, using boats, personnel, and funds that it does not

currently have. App. 60a-61a.

d. One consequence that Michigan does not dispute is that

its injunction would completely end navigation between the Illinois

Waterway and Calumet Harbor/Lake Michigan. Michigan’s only answer

is that the region -- indeed, anyone who ships, carries, receives,

or ultimately purchases the $1.7 billion worth of freight that

passes through the O’Brien Lock annually -- simply must bear the

cost.

That assertion goes too far even for Michigan’s own amicus

Indiana. As Indiana explains (Br. 3-4), the continued use of the

O’Brien Lock is “vital to the operations of the steel mills of

northwest Indiana” and to “petroleum refining [and] re-refining,

agricultural and building construction manufacturing businesses.”

Michigan’s belatedly proffered economic analysis, which seeks

to minimize the economic impact of the proposed injunction,

founders on its own assumptions. See generally App. 36a-47a.

Michigan’s expert, Dr. Taylor, acknowledges that there currently is

no facility on the CAWS that would permit goods to be transferred

from barges and loaded onto trucks or rail cars, but he simply

“assume[s]” that one would be built, and instantaneously. Mich.

Renewed App. 42a, 52a. In fact, because freight currently passes

28

through the locks in both directions, at least two trans-loading

facilities would have to be built, one on each side of the locks,

plus separate facilities for cement, which requires special barges

and special handling. Even if suitable sites exist, that construc­

tion could not likely be done in less than a year. App. 43a-44a.

In the absence of such a facility, shippers would be forced to do

precisely what the Corps’ model explained: to ship by some other

means that does not involve transport through the CAWS at all. Dr.

Taylor acknowledges that shipment by barge is cheaper than overland

shipment, e.g., Mich. Renewed App. 43a; accordingly, his estimate,

which assumes that the CAWS can still be used to ship goods to

within 12.5 miles of their final destination, necessarily under­

states the impact of a complete lock closure.

Even if Dr. Taylor were correct that goods would need to be

shifted to ground transportation for only 12.5 miles, he acknowl­

edges that it would take 1,000 trucks per day to carry the amount

of cargo that passes through the O’Brien lock. Mich. Renewed App.

47a. A thousand trucks lined up bumper to bumper would occupy ten

solid miles of road. App. 45a. Adding a thousand trucks per day

doing 25-mile round trips in a concentrated area served primarily

by secondary roads, not multi-lane highways, would have a far

greater effect than Dr. Taylor estimates. Ibid. That is because

Taylor uses as the denominator of his estimate “the Chicago

region,” “Chicago,” or the road “system” as a whole, Mich. Renewed

App. 25a, 47a-48a, when in fact the premise of Dr. Taylor’s

analysis is that the traffic would be concentrated in a small area

29

within 12.5 miles of the hypothetical trans-loading facility. Id.

at 42a. Thus, even if one indulged all of Dr. Taylor’s assump­

tions, the impact of Michigan’s injunction would be far more

significant than he predicts. See also App. 45a-47a.

Finally, Dr. Taylor uses unrepresentatively low figures for

both the cargo traffic through the locks and the cost savings

associated with water transport. He uses figures from 2008 alone,

a recession year with lower traffic; the Corps’ estimate -- that

closing the locks would increase shipping costs by $192 million a

year -- used a 5-year average tonnage. See App. 40a. But even

using Dr. Taylor’s chosen year, the Corps’ estimate is still more

than twice as high as Dr. Taylor’s ($167 million per year), because

the Corps uses more precise cost data that better tracks the

specific commodities that actually pass through the O’Brien lock,

whereas Dr. Taylor relies on national averages. App. 41a-43a.

* * * * *

Michigan’s renewed motion corrects none of the flaws of its

first motion. Michigan had no valid argument for proceeding in

this Court, and it has offered no new one. Michigan had no valid

legal theory on which any federal court could mandate that the

Corps take the action Michigan demands; it has offered no new one.

Michigan had no evidence that irreparable injury was truly

imminent; on that prong, the new eDNA findings do not add to the

previous ones. Michigan had and has only a bare demand for an

extraordinary, mandatory injunction -- an injunction that could

threaten public safety and flood control, substantially affect the

30

regional and national economies, and greatly disrupt transportation

systems (on both land and water) on which those economies rely.

This Court should again reject Michigan’s demand.

CONCLUSION

The renewed motion for a preliminary injunction should be

denied.

Respectfully submitted.

ELENA KAGANSolicitor General

FEBRUARY 2010